Firefighter Local Union No. 1784 v. Stotts Brief Amicus Curiae

    Nos. 82-206 and 82-229

In the

Supreme (Court of tire Unit zb Staten
October Term , 1983

jljl \ Q 1988 ---------------♦ ---------------
Firefighters Local Union No . 1784,

-v.-
Ca r l W. Stotts, et al.,

Petitioner,

Respondents.

Memphis Fire Department, et al.,
Petitioners,—-v.—

Ca r l W. Stotts, et al.,
Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND AS AMICUS 

CURIAE IN SUPPORT OF RESPONDENTS

IN.
Ai U t

- t  f

tiEW  y S O N  s t r e e t
w  y0RK< N. Y. I00T3

O f Counsel:
Joaquin G. Avila 
Morris J. Bailer 
The Mexican American 

Legal Defense and 
Educational Fund 

28 Geary Street
San Francisco, California 94108

'b 0 t  L. King 
(Counsel of Record)

Mary Jo White 
Kenneth E. Wile 
George T. Spera, Jr. 
Debevoise & Plimpton 
875 Third Avenue 
New York, New York 10022 
(212) 909-6000
Attorneys fo r  Amicus Curiae 

The Mexican American 
Legal Defense and 
Educational Fund

October 27, 1983



TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES...................      iii

INTEREST OF THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND. . . . . . . . . .  1

INTRODUCTION .........................................     2

SUMMARY OF ARGUMENT...............................  3

ARGUMENT:.............................................     5
I. The District Court Had the Power To Modify the

1980 Decree and Properly Exercised That Power 5

II. Title VII Mandates the Relief Awarded in the
Preliminary Injunction.........................   10

A. Section 706(g) of Title VII Does Not Limit
Relief to Adjudicated Victims of Discrimina­
tion .............       10

B. The Relief Granted in the Preliminary Injunc­
tion Did Not Impermissibly Interfere with the 
Operation of a Seniority System...............   18

CONCLUSION...................    24



Ill

TABLE OF AUTHORITIES

Cases page

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . .10, 11,
20

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).. 12
Baker v. City o f Detroit, 483 F. Supp. 930 (E.D. Mich.

1979), a ff’d sub nom. Bratton v. City o f  Detroit, 704 
F.2d 878 (6th Cir.), modified, 712 F.2d 222 (6th Cir.
1983).............    13

Berkman v. City o f  New York, 705 F.2d 584 (2d Cir.
1983).........................      11

Bonner v. City o f  Pritchard, 661 F.2d 1206 (11th Cir.
1 9 8 1 ) . . . . . .......................................................................  12

Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.2d 
1017 (1st Cir. 1974), cert, denied, 421 U.S. 910 (1975) 11

Boston Chapter, NAACP  v. Beecher, 679 F.2d 965 (1st 
Cir. 1982), vacated and remanded fo r a determination
o f  mootness, 103 S. Ct. 2076 (1983) .......................... .. 9, 20

Bratton v. City o f  Detroit, 704 F.2d 878 (6th Cir.), 
modified, 712 F.2d 222 (6th Cir. 1983).................. 12

Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981).................. 9

Brown v. Swann, 35 U.S. (10 Pet.) 497 (1836).............. 10

Carson v. American Brands Inc., 450 U.S. 79 (1981).. . 12

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert, 
denied, 406 U.S. 950 (1972) ..........................................  12

Chisholm v. United States Postal Service, 665 F.2d 482 
(4th Cir. 1981)........................................................... ...10 , 12

Chrysler Corporation v. United States, 316 U.S. 556
(1942).............................................................................  5, 6, 7



IV

City o f Alcoa v. International Brotherhood o f Electrical 
Workers Local 760, 203 Tenn. 12, 308 S.W. 2d 476 
(1958)...............................................................................  18

Davis v. County o f Los Angeles, 566 F.2d 1334 (9th Cir.
1977), vacated as moot, 440 U.S. 625 (1979)......... 12

EEOC v. American Telephone and Telegraph Co., 556 
F.2d 167 (3d Cir. 1977), cert, denied, 438 U.S. 915
(1978)................................................................... 12, 13, 14, 15

Environmental Defense Fund, Inc. v. Castle, 636 F.2d 
1229 (D.C. Cir. 1980).....................................................  7

Franks v. Bowman Transportation Co., 424 U.S. 747 
(1976)........................................ 4, 11, 18, 19, 21, 22, 23

Gautreaux v. Pierce, 535 F. Supp. 423 (N.D. 111. 1982) 6
Griggs v. Duke Power Co., 401 U.S. 424 (1971)............  14

International Brotherhood o f Teamsters v. United 
States, 431 U.S. 324 (1977) . . .  .4, 11, 18, 19, 20, 21, 22, 23

Kirke la Shelle Co. v. Armstrong, 263 N.Y. 79, 87, 188 
N.E. 163, 167 (1933).....................................................  7

Luevano v. Campbell, 93 F.R.D. 68 (D.D.C. 1981) . . . .  7
McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982)........  11

NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974).............. 11

Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978)................10, 12

Stotts v. Memphis Fire Department, 679 F.2d 541 (6th 
Cir. 1982), cert, granted, 103 S. Ct. 2451 (1983)........  8, 13

United States v. Armour & Co., 402 U.S. 673 (1971)... 6

United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d 
Cir. 1971)  ................................... .........................  21

United States v. City o f Alexandria, 614 F.2d 1358 (5th 
Cir. 1980)................................................................... 10, 12, 15

PAGE



V

PAGE

United States v. City o f Chicago, 549 F.2d 415 (7th Cir.
1977).................................................................................  12

United States v. City o f Miami, 664 F.2d 435 (5th Cir.
1981) (en banc)...............................................................  21

United States v. Ironworkers, Local 86, 443 F.2d 544 
(9th Cir.), cert, denied, 404 U.S. 984 (1971)................  17

United States v. IT T  Continental Baking Co., 420 U.S.
223 (1975).........................................................................  7

United States v. Lee Way Motor Freight Inc., 625 F.2d 
918 (10th Cir. 1979).......................................................  12

United States v. Swift & Co., 286 U.S. 106 (1932)........  5, 6

United States v. United Shoe Machinery Corp., 391 U.S.
244 (1968).....................      6

United Steelworkers o f America v. Weber, 443 U.S. 193
(1979).............................................     17

Statutes
Civil Rights Act of 1964, Title VII, Pub. L. 88-352, 88th 

Cong., 2d Sess., 78 Stat. 253 (1964), codified (as
amended) at 42 U.S.C. § 2000e et seq......... ............ passim

Section 703(h), 42 U.S.C. § 2000e-2(h)...................... .18, 19
Section 704(a), 42 U.S.C. § 2000e-3(a)........................ 14

Section 706(g), 42 U.S.C. § 2000e-5(g)..........10, 13, 14, 15,
16, 18, 22

Equal Employment Opportunity Act of 1972, Pub. L. 
92-261, 92d Cong., 2d Sess., 86 Stat. 103 (1972), 
codified (as amended) ai 42 U.S.C. § 2000e et seq. .. 17



VI

Miscellaneous
110 Cong. Rec. (1964):

p. 2567 ....................................................................... 14, 15, 16
p. 6548 .......... ................................................................ . 17
p. 7214.............    16

118 Cong. Rec. (1972):
pp. 1671-75 ..........................   17
p. 3460 .......................    17
p. 7168...................    10

H.R. 7152, 88th Cong., 1st Sess. (1963).......................... 15

H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963)..........  15
Burton, Breach o f Contract and the Duty to Perform in 

Good Faith, 94 Harv. L. Rev. 369 (1980)............ 7, 8

Vaas, Title VII: Legislative History, 7 B.C. Indus. &
Com. L. Rev. 431 (1966).... ................ .......................  14

PAGE



In the

Suprem e © curt o f ttjr l&nxtzb States
October Term, 1983 

Nos. 82-206 and 82-229

Firefighters Local Union No . 1784,
Petitioner,

Ca r l W. Stotts, et al.,
Respondents.

Memphis Fire Department, et al.,
Petitioners,

Ca r l W. Stotts, et al.,
Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND AS AMICUS 

CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND

The Mexican American Legal Defense and Educational 
Fund (“MALDEF”) is a national organization dedicated to 
achieving equal employment opportunities for Mexican Ameri­
cans and other Americans of Hispanic heritage. MALDEF has 
pursued this objective in part by serving as counsel of record in 
employment discrimination actions. It has also presented its 
views, as amicus curiae, to the United States Courts regarding



2

employment discrimination issues of importance to Hispanics. 
The availability of the relief directed by the District Court in 
this case and challenged on this appeal is such an issue.

Hispanics, like blacks, endure the persistent effects of em­
ployment discrimination throughout the United States. His­
panics who aspire to the equality of employment opportunities 
guaranteed by Title VII of the Civil Rights Act of 1964 must 
have some assurance that gains in hiring and employment won 
through litigation will not be eradicated by an employer’s 
response to developments unforeseen at the time of suit. In this 
case, the Court is called upon to review a district court decree 
that protects gains in minority hiring and promotion threat­
ened by circumstances arising after entry of a consent decree 
settling a Title VII action. In light of the importance of this 
issue for the Hispanic community, MALDEF submits this brief 
urging affirmance of the decision below.1

INTRODUCTION
At issue on this appeal is the power of a federal district court 

to preserve legally mandated gains in the hiring and promotion 
of minorities, made pursuant to a judicially enforceable con­
sent decree, when those gains will be substantially diminished 
by an employer’s actions in response to circumstances unfore­
seen when the parties entered into the decree.

Two separate actions, one a Government pattern and prac­
tice suit initiated by the Department of Justice in 1974 and the 
other a private class action filed by Respondent Carl W. Stotts 
in 1977, were brought against the City of Memphis and its Fire 
Department (hereinafter collectively referred to as “ the City” ) 
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§ 2000e et seq., and related statutes. In both cases, the parties 
reached negotiated settlements. These settlements were em­
bodied in consent decrees (the “ 1974 Decree” and the “ 1980 
Decree” , respectively) that commit the City to the goal of

1 The parties have consented to the submission of this brief, and their 
letters of consent have been filed with the Clerk of the Court pursuant to 
Rule 36.2 of the Rules of this Court.



3

achieving, within each job classification in the Fire Depart­
ment, minority representation approximating the minority rep­
resentation in the civilian labor force. Partial, but by no means 
complete, achievement of this goal had been attained by 1981 
when an unforeseen change in the economic climate prompted 
the City to initiate a lay-off program. If implemented, this 
program would have substantially undone the gains in minority 
hiring and promotions that had been made under the decrees. 
After the program was announced, the private plaintiffs 
sought equitable relief solely to preserve the partial remedy 
already accomplished. The result was the preliminary injunc­
tion at issue here, which enjoins the City from applying its 
lay-off program to decrease the percentage of blacks in certain 
job classifications within the Fire Department.2

SUMMARY OF ARGUMENT
Under longstanding precedent, the district courts possess the 

authority to modify a consent decree in light of unforeseen 
circumstances that have arisen following its entry. This equita­
ble power is properly exercised when, as here, a change in 
circumstances threatens to frustrate the remedial program set 
forth in the decree. The seniority-based layoffs proposed by 
the City of Memphis for its Fire Department would have 
reversed the progress made in hiring and promoting blacks into 
positions from which they had historically been excluded. The 
District Court, in a careful exercise of its equitable discretion, 
entered a preliminary injunction that preserved the status quo 
by preventing the City from reducing the percentage of blacks 
within each Fire Department rank pending a hearing on the 
merits. This limited relief falls squarely within the equitable 
power of the court to preserve the efficacy of the earlier 
remedial order.

2 MALDEF joins in Respondents’ argument that, because those white 
employees laid off due to the preliminary injunction were reinstated shortly 
thereafter, the case is now moot.



4

The relief ordered in the preliminary injunction is fully 
consistent with the broad remedial scope of Title VII. The 
preliminary injunction preserves the relief ordered in the con­
sent decree, but imposes no additional burdens on defendants. 
Because the 1980 Decree was designed to eliminate the present 
effects of past discrimination, the preliminary injunction 
plainly falls within the authority of the courts under Section 
706(g) of Title VII, 42 U.S.C. § 2000e-5(g), to order all 
appropriate “ affirmative action.” Title VII relief, moreover, is 
not limited to adjudicated victims of discrimination; Peti­
tioners’ argument to the contrary is contradicted by the legisla­
tive history of Section 706(g) and by numerous decisions of the 
federal courts.

The preliminary injunction is not prohibited by Title VII 
even though it affects the expectations of white employees. The 
intrusion is minimal. Since Franks v. Bowman Transportation 
Co., 424 U.S. 747 (1976), and International Brotherhood o f 
Teamsters v. United States, 431 U.S. 324 (1977), grants of 
permanent retroactive seniority have been widely available 
when necessary to fulfill the objectives of Title VII, even where 
employees enjoy seniority benefits under a bona fide seniority 
plan. The equitable relief ordered by the District Court was 
necessary to preserve the effectiveness of the remedy previously 
ordered and intrudes far less on the operation of seniority than 
does the remedy of full permanent retroactive seniority autho­
rized in Franks and Teamsters.

Because the District Court neither abused its discretion nor 
exceeded its authority, its entry of the preliminary injunction 
should be affirmed.



5

ARGUMENT

I. t h e  d is t r ic t  c o u r t  h a d  t h e  p o w e r  to
MODIFY THE 1980 DECREE AND PROPERLY EX­
ERCISED THAT POWER

The Court of Appeals, in sustaining the District Court’s 
preliminary injunction, ruled both that the relief was based 
on a proper construction of the 1980 Decree as written 
and, alternatively, that the injunction fell within the equita­
ble power of a court to modify a consent decree in light 
of changed circumstances. Assuming that the preliminary- 
injunction does in fact “modify” the original decree, the 
Court of Appeals was clearly correct in its ruling.

It is a principle of longstanding that a district court has 
the power to modify a consent decree in light of changed 
circumstances “to adapt its restraints to the needs of a 
new day.” United States v. Swift & Co., 286 U.S. 106, 113 
(1932). As Justice Cardozo wrote for the Court: “We are 
not doubtful of the power of a court of equity to modify 
an injunction in adaptation to changed conditions though 
it was entered by consent.” Id. at 114. This power is “in­
herent in the jurisdiction of the chancery,” id., and exists 
whether or not the decree expressly reserves to the court 
the authority to modify the decree, id.; see Chrysler Cor­
poration v. United States, 316 U.S. 557, 567 (1942) 
(Frankfurter, J., dissenting). It is appropriately exercised 
where a change in circumstances prevents the decree from 
achieving the remedy agreed upon by the parties.

A district court’s exercise of its power to modify a con­
sent decree will be overturned only if entry of the modifi­
cation amounts to an abuse of discretion. This Court, in 
Chrysler Corporation v. United States, defined the narrow 
scope of review as follows:

The question is whether the change . . . amounted to an 
abuse of this power to modify. We think that the test to be 
applied in answering this question is whether the change 
served to effectuate or to thwart the basic purpose of the 
original consent decree.



6

316 U.S. at 562. Applying this test in United States v. United 
Shoe Machinery Corp., 391 U.S. 244 (1968), the Court held 
that where a decree has failed to achieve its “principal ob­
jects,” it is appropriate “to prescribe other, and if necessary 
more definitive, means to achieve the result.” Id. at 251-52.3 
As noted in Gautreaux v. Pierce, 535 F. Supp. 423, 426 n.7 
(N.D. 111. 1982), “If a plaintiff can show that modification of 
the decree is crucial to the effectuation of the purpose the 
decree was intended to achieve, then a grievous wrong would 
be perpetrated if the decree was not modified.”

United States v. Armour & Co., 402 U.S. 673 (1971), relied 
upon by Petitioners, does not disturb these principles. In 
Armour, the Court held that construction of a consent decree 
must be conducted within the “four corners” of the decree. 
The opinion, however, did not purport to alter the standards 
applicable to requests for modification of a decree; to the 
contrary, the Court suggested that “if the Government believed 
that changed conditions warranted further relief [beyond that 
provided for in the original consent decree], it could have 
sought modification of the [decree] itself.” Id. at 674-75 (citing 
Chrysler Corporation v. United States, supra). In addition, the 
Court observed that there “might be a persuasive argument for 
modifying the original decree, after full litigation, on a claim 
that unforeseen circumstances now made additional relief de­

3 Citing United States v. Swift & Co., 286 U.S. 106, 115 (1932), the 
Firefighters Union suggests that modification of the 1980 Decree cannot be 
upheld unless changed circumstances have transformed the original decree 
into an “instrument of wrong.” The Swift Court’s insistence on a “clear 
showing of grievous wrong,” 286 U.S. at 119, however, applies only to 
applications by parties seeking to reduce their obligations under a consent 
decree, not to requests for modification by the beneficiary of the decree’s 
remedial program. United States v. United Shoe Machinery Corp., 391 U.S. 
244, 248-49 (1968). It is not the consent decree that constitutes the “wrong” 
for the beneficiary of the relief therein, but the prior practices that led to the 
injunctive provisions of the decree. When, in light of changed circumstances, 
the decree no longer effectively prevents the harm against which it was 
intended to guard, the question relevant to an application for modification is 
that identified in Chrysler, whether the proposed modification is needed to 
effectuate the goals embodied in the decree. See United Shoe, 391 U.S. at 
249-51.



7

sirable to prevent the evils aimed at by the original complaint.” 
402 at U.S. at 681. More recently, this Court has reiterated that 
a party may petition for modification of a consent decree if it 
believes that changed circumstances warrant further relief. See 
United States v. IT T  Continental Baking Co., 420 U.S. 223, 
233 n.8 (1975). See also Environmental Defense Fund, Inc. v. 
Castle, 636 F.2d 1229, 1240 (D.C. Cir. 1980) (“sound exercise 
of judicial discretion may require that terms of a consent 
decree be modified when there has been a significant change in 
the circumstances obtaining at the time the consent decree was 
entered”); Luevano v. Campbell, 93 F.R.D. 68, 92-93 (D.D.C. 
1981) (court has power “to modify the obligations of the 
Consent Decree in order to further its purposes in light of 
unforeseen problems which may arise”).

In the present case, it is plain that, to the extent (if any) that 
it modified the 1980 Decree, the District Court’s preliminary 
injunction “served to effectuate” rather than “thwart” the 
objects of the original decree.

The “evil aimed at” in this Title VII action was the exclusion 
of blacks from all levels of the Memphis Fire Department. The 
1980 Decree strikes at this evil by requiring progress in the 
hiring and promotion of blacks until their representation in the 
Memphis Fire Department approximates their representation 
in the civilian work force. By accepting the 1980 Decree, 
moreover, the plaintiffs agreed to forego pursuit of other 
relief, e.g., back pay (beyond a $60,000 award provided in the 
settlement) and full retroactive seniority. The lay-offs proposed 
by the City would have effectively deprived plaintiffs of the 
benefit of their bargain in agreeing to the consent decree. See, 
e.g., Kirke la Shelle Co. v. Armstrong, 263 N.Y. 79, 87, 188 
N.E. 163, 167 (1933) (every contract contains “an implied 
covenant that neither party shall do anyting which will have the 
effect of destroying or injuring the right of the other party to 
receive the fruits of the contract”); Burton, Breach o f  Contract 
and the Duty to Perform in Good Faith, 94 Harv. L. Rev. 369
(1980).

The goal of proportional representation had been achieved 
to only a limited degree when the City announced its intention



to lay-off members of the Department. All parties agree that 
the proposed lay-offs would have disproportionately affected 
black fire fighters and officers; progress in minority hiring and 
promotion would largely have been undone. Disproportionate 
numbers of blacks in supervisory positions such as lieutenant 
would have been reduced in rank, thereby negating the ad­
vances made in minority promotions under the 1980 Decree.4 
In addition, disproportionate numbers of blacks at the lowest 
rank would have been laid off, thereby diminishing overall 
black representation in the Department. As the Court of 
Appeals noted, “[T]he application of the lay-off policy to the 
job classifications selected by the City would have virtually 
destroyed the progress belatedly achieved through affirmative 
action. The City contracted in 1974 and 1980 to accomplish 
precisely that which the lay-offs would destroy: a substantial 
increase in the number of minorities in supervisory positions.” 
679 F.2d at 561. Had the City been allowed to proceed, the 
plaintiffs would have been deprived of the very remedy in 
exchange for which they gave up their right to pursue remedies 
of back pay and full retroactive seniority. See Burton, supra, 
94 Harv. L. Rev. at 387.

Because the proposed lay-offs would have vitiated the in­
tended effects of the 1980 Decree, the District Court, under the 
authorities cited above, properly exercised its equitable discre­
tion to halt the proposed City action. The Court’s preliminary 
injunction is carefully limited to avoid interference with the 
operation of the Memphis Fire Department and to minimize 
any infringement of the interests of other employees.5 It does 
no more than prevent the City from reducing the percentage of

4 The City acknowledges that, of 36 proposed demotions, 26 would 
have affected blacks. This disparity was most pronounced at the lieutenant 
rank, where 16 of 29 black lieutenants (55%) would have been demoted to 
driver or private, while only 1 of 211 white lieutenants (0.5%) would have 
been so affected. See Brief for Petitioners Memphis Fire Department et al. at 
7 n .l l .

5 Compared with the range of possiblities available to the District 
Court, the relief ordered was strikingly modest. The Court, for example, did 
not direct that the City, during its fiscal crisis, make continued progress



9

minorities in each job classification. While furthering the 
objectives of the 1980 Decree, the relief carefully accommo­
dates the interests of all employees affected by the preliminary 
injunction. The District Court engaged in a sound exercise, not 
an abuse, of its equitable discretion.

The decisions in other employment discrimination cases 
further confirm the propriety of the District Court’s action. 
Courts confronted with facts virtually identical to those pre­
sented here have modified consent decrees without hesitation 
to prevent eradication of gains in minority employment. See 
Boston Chapter, NAACP  v. Beecher, 679 F.2d 965 (1st Cir.
1982), vacated and remanded fo r  a determination o f mootness, 
103 S.Ct. 2076 (1983); Brown v. Neeb, 644 F.2d 551 (6th Cir. 
1981) (consent decree pursuant to 42 U.S.C. §§ 1981, 1983).

Petitioners and various amici suggest that the District 
Court’s action will deter settlement of other Title VII cases, 
since parties will be reluctant to agree to consent decrees that 
might be revised at some point in the future in light of 
unforeseen circumstances. This line of reasoning is unper­
suasive.

As the precedents cited above establish, a court has power to 
modify a consent decree only in a manner that will advance the 
goals originally agreed to by the parties and comprehended by 
the decree. Modification in accordance with this standard does 
not disrupt the legitimate expectations of the parties; it merely 
ensures that unforeseen circumstances will not defeat a reme­
dial program whose success was anticipated by both parties to 
the decree. This long-established equitable power must be 
regarded as a part of the informed expectations of litigating 
parties and their attorneys. Because affirmance of the decision 
below would represent no augmentation of the equitable power 
of a district court, there is no basis for apprehension that the 
prospects for settlement of other cases will be impaired.

toward the goals set forth in the 1980 Decree. The preliminary injunction 
actually imposed no additional burdens on the City, since it did not compel 
the City to retain more members of the Fire Department than the City 
determined to be appropriate. The relief instead was a temporary, limited 
measure directed exclusively to preservation of the limited progress already 
achieved under the 1980 Decree.



10

II. TITLE VII MANDATES THE RELIEF AWARDED IN 
THE PRELIMINARY INJUNCTION

Petitioners and several amici also maintain that the prelimi­
nary injunction contravenes the provisions of Title VII. They 
argue that the relevant remedial provision of Title VII, Section 
706(g), 42 U.S.C. § 2000e-5(g), prohibits the granting of any 
relief to persons who have not been adjudicated victims of 
discrimination prohibited by Title VII. They also argue that, 
even if Section 706(g) permits the award of certain types of 
relief to persons not adjudicated victims of discrimination, the 
preliminary injunction impermissibly granted a form of retro­
active seniority which is limited to adjudicated victims of 
discrimination. These arguments find no support in the lan­
guage or purpose of Title VII, and the relevant decisions of 
this Court argue strongly to the contrary.

A. Section 706(g) of Title VII Does Not Limit Relief to 
Adjudicated Victims of Discrimination

In enacting Title VII, “ Congress took care to arm the courts 
with full equitable powers. For it is the historic purpose of 
equity to ‘securje] complete justice.’ ” Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 418 (1975) (“Moody”) (quoting Brown 
v. Swann, 35 U.S. (10 Pet.) 497, 503 (1836)). Congress in­
tended that, through the exercise of this plenary authority, the 
courts would “ fashion the most complete relief possible.’’ 422 
U.S. at 421 (quoting 118 Cong. Rec. 7168 (1972) (remarks of 
Sen. Williams)).

These broad equitable powers are granted by Section 706(g) 
of Title VII, 42 U.S.C. § 2000e-5(g). Section 706(g) explicitly 
empowers the district courts to “ order such affirmative action 
as may be appropriate.” Affirmative action remedies have 
frequently included hiring and promotion goals for minority 
employees (such as those contained in the 1974 and 1980 
Decrees), see, e.g., Chisolm v. United States Postal Service, 
665 F.2d 482 (4th Cir. 1981); United States v. City o f Alexan­
dria, 614 F.2d 1014 (5th Cir. 1980); Prate v. Freedman, 583 
F.2d 42 (2d Cir. 1978), as well as awards of retroactive



11

seniority to prevailing class members, see, e.g., International 
Brotherhood o f Teamsters v. United States, 431 U.S. 324 
(1977) (“ Teamsters” ); Franks v. Bowman Transportation Co., 
424 U.S. 747 (1976) (“Franks”).

In fashioning the complete remedy required by Section 
706(g), the district court must fulfill two objectives of Title 
VII. First, as Petitioners and the Department of Justice em­
phasize, the court must provide complete “ make-whole” re­
lief, so that identifiable victims of discrimination will be placed 
in the economic position they would have enjoyed in the 
absence of discrimination by the employer. See, e.g., Franks, 
424 U.S. at 763; Moody, 422 U.S. at 418-19.

“ Make-whole” relief, however, does not exhaust the reach 
of Title VII. There is a second goal. “ [A] primary objective of 
Title VII is prophylactic: to achieve equal employment oppor­
tunity and to remove the barriers that have operated to favor 
white male employees over other employees.” Teamsters, 431 
U.S. at 364. Thus, the court has “ not merely the power but the 
duty to render a decree which will so far as possible eliminate 
the discriminatory effects of the past as well as bar like 
discrimination in the future.” Teamsters, 431 U.S. at 364 
(quoting Moody, 422 U.S. at 418).6

Because eliminating the present effects of past discrimina­
tion is no less important an objective under Title VII than the 
providing sufficient “ make-whole” relief, remedies under Sec­
tion 706(g) have never been limited to adjudicated victims of 
the employer’s discrimination. The twelve circuits are unani­
mous in upholding hiring and promotion goals not limited to 
adjudicated victims of discrimination, explicitly or implicitly 
because such remedies are necessary to eliminate the present 
effects of past discrimination.7 As Judge Charles Clark ex­
plained in NAACP  v. Allen, 493 F.2d 614, 621 (5th Cir. 1974):

6 See Berkman v. City o f  New York, 705 F.2d 584, 596 (2d Cir. 1983) 
(“ Affirmative relief is that designed principally to remedy the effects of 
discrimination that may not be cured by the granting of compliance or 
compensatory relief.” ).

7 See, e.g., McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982); Boston 
Chapter, N .A.A.C .P., Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert.



12

The use of quota relief in employment discrimination 
cases is bottomed on the chancellor’s duty to eradicate the 
continuing effects of past unlawful practices. By mandat­
ing the hiring of those who have been the object of 
discrimination, quota relief promptly operates to change 
the outward and visible signs of yesterday’s racial distinc­
tions and thus, to provide an impetus to the process of 
dismantling the barriers, psychological or otherwise, 
erected by past practices. It is a temporary remedy that 
seeks to spend itself as promptly as it can by creating a 
climate in which objective, neutral employment criteria 
can successfully operate to select public employees solely 
on the basis of job-related merit.

Limiting relief under Section 706(g) to adjudicated victims 
of proven discrimination could only obstruct enforcement of 
Title VII. If an adjudication were required, it would be 
impossible to award class-wide relief under a consent decree; 
each plaintiff who seeks such relief would be forced to go to 
trial, despite the efforts by Congress and the Court to foster 
settlement of Title VII claims. See, e.g., Carson v. American 
Brands, Inc., 450 U.S. 79, 88 n.14 (1981); Alexander v. 
Gardner-Denver Co., 415 U.S. 36, 44 (1974). Even if an 
increase in the number of Title VII trials were desirable, the 
ability of the district courts to desegregate previously all-white 
work forces would depend on the fortuitous availability of all

denied, 421 U.S. 910 (1975); Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978); 
EEOC v. American Telephone and Telegraph Co., 556 F.2d 167 (3d Cir. 
1977), cert, denied, 438 U.S. 915 (1978); Chisholm v. United States Postal 
Service, 665 F.2d 482 (4th Cir. 1981); United States v. City o f  Alexandria, 
614 F.2d 1358 (5th Cir. 1981); Bratton v. City o f  Detroit, 704 F.2d 878 (6th 
Cir.), modified, 712 F.2d 222 (6th Cir. 1983); United States v. City o f  
Chicago, 549 F.2d 415 (7th Cir. 1977); Carter v. Gallagher, 452 F.2d 315 (8th 
Cir.) (en banc), cert, denied, 406 U.S. 950 (1972); Davis v. County o f  Los 
Angeles, 566 F.2d 1334 (9th Cir. 1977), vacated as moot, 440 U.S. 625 
(1979); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th 
Cir. 1979). Under Bonner v. City o f Pritchard, 661 F.2d 1206 (11th Cir. 
1981) (en banc), panels of the Eleventh Circuit remain bound by Fifth Circuit 
decisions rendered prior to October 1, 1981, such as United States v. City o f  
Alexandria, supra.



13

persons who were victims of the employer’s discriminatory 
practices. As the Third Circuit has observed, all of the victims 
of an employer’s illegal practices are unlikely to be available; 
race-conscious remedies are therefore necessary “ to counteract 
the effects of discriminatory practices upon the balance of sex 
and racial groups that would otherwise have obtained.” EEOC 
v. American Telephone & Telegraph Co., 556 F.2d 167, 180 
(3d Cir. 1977), cert, denied, 438 U.S. 915 (1978) (“AT& T”); 
accord, Baker v. City o f  Detroit, 483 F. Supp. 930, 993-94 
(E.D. Mich. 1979), a ff’d sub nom. Bratton v. City o f  Detroit, 
704 F.2d 878 (6th Cir.), modified, 712 F.2d 222 (6th Cir.
1983).

Both the 1980 Decree and the preliminary injunction at issue 
here fulfill these important objectives of Title VII. The Sixth 
Circuit held that the race-conscious employment goals in the 
decree were a reasonable means of ameliorating the present 
effects of past discrimination and of desegregating the Fire 
Department. 679 F.2d at 553-56. The preliminary injunction, 
by preserving for the successful class members the benefits of 
the consent decree until there is a hearing on the merits, 
equally serves those goals.8

Even though the 1980 Decree and the preliminary injunction 
are plainly the type of “affirmative action” mandated by 
Section 706(g), the Justice Department implausibly interprets 
the final sentence of Section 706(g) to prohibit an award of 
relief to any except proven victims of discrimination. This 
sentence provides that:

No order of the court shall require the admission or 
reinstatement of an individual as a member of a union, or 
the hiring, reinstatement, or promotion of an individual 
as an employee, or the payment to him of any back pay, i f  
such individual was refused admission, suspended, or 
expelled, or was refused employment or advancement or

8 Of course, to the extent that beneficiaries of the 1980 Decree and the 
preliminary injunction were victims of discrimination by the Fire Depart­
ment, the relief serves the “make-whole” objective of Title VII as well.



14

was suspended or discharged for any reason other than 
discrimination on account of race, color, religion, sex, or 
national origin or in violation of section 2000e-3(a) of this 
title.

(Emphasis added.)
By its terms, this sentence does not apply to the relief 

ordered in the preliminary injunction. In exempting some 
members of the prevailing class from lay-offs, the preliminary 
injunction does not order “the hiring, reinstatement, or pro­
motion” of any person. However, even if this sentence did 
apply to the preliminary injunction, it would not prohibit the 
relief ordered by the District Court.

No court has ever adopted the Justice Department’s novel 
interpretation of Section 706(g), and this reading was explicitly 
rejected by the Third Circuit in AT&T. The statute prohibits 
the courts only from ordering the hiring, reinstatement, or 
promotion of an individual “if such individual was refused 
. . . employment or advancement or was suspended or dis­
charged for any reason other than discrimination on account 
or race, color, religion, sex, or national origin . . . .” This 
language applies only to those persons who previously sought 
employment or promotion but had been rejected by the em­
ployer for nondiscriminatory reasons (e.g., because they were 
unqualified); it makes no reference to persons who had not 
sought employment or promotion and thus does not prohibit 
their hiring under a remedial affirmative action plan.

Instead, the quoted language reflects Congress’s intent that 
persons who had been refused employment or promotion (or 
who had been fired) for legitimate, nondiscriminatory reasons 
could not invoke the strong remedial provisions of Section 
706(g) to obtain employment or promotion. AT&T, 556 F.2d at 
176; 110 Cong. Rec. 2567 (1964) (remarks of Rep. Celler in 
introducing this language); Vaas, Title VII: Legislative History, 
7 B.C. Ind. & Com. L. Rev. 431, 438 (1966). In enacting Title 
VII, Congress did not intend to authorize hiring of unqualified 
employees. See Griggs v. Duke Power Co., 401 U.S. 424, 436 
(1971). The 1980 Decree approved by the panel more than



15

complies with this limitation under Section 706(g) because it 
permits the City to deny employment to any person who is not 
qualified for the position. See United States v. City o f  Alexan­
dria, 614 F.2d 1358, 1366 (5th Cir. 1980); AT&T, 556 F.2d at 
176.

In AT&T, the Third Circuit, after thoroughly canvassing the 
relevant legislative history, concluded that the interpretation 
now advocated by the Justice Department distorted congres­
sional intent. 556 F.2d at 175-77. As the AT&T court noted, the 
section-by-section analysis in the 1964 House Report inter­
preted the initial House version of Section 706(g), H.R. 7152, 
88th Cong., 1st Sess. § 707(e) (1963), as follows:

No order o f  the court may require the admission or 
reinstatement of an individual as a member of the union 
or the hiring, reinstatement, or promotion o f an individ­
ual as an employee or payment of any back pay i f  the 
individual was refused admission, suspended, or sepa­
rated, or was refused employment or advancement, or 
was suspended or discharged fo r  cause.

H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963) (emphasis 
added). Like the final language of Section 706(g), this passage 
reflects only congressional concern that employers not be 
compelled to hire specific individuals who were unqualified or 
who were denied employment or promotion for nondiscrimina- 
tory reasons.

On the House floor, the proposed section was amended. The 
grounds on which an employer could refuse to hire or promote 
“such individual” claiming discrimination were expanded by 
substituting for the word “cause” the present language, “for 
any reason other than discrimination on account of race, color, 
religion, or national origin.” See 110 Cong. Rec. 2567 (1964). 
The substitution of this language was designed to prevent 
plaintiffs pressing spurious claims of discrimination from argu­
ing that an employer’s legitimate reason for denying employ­
ment or promotion did not qualify as “cause”. Representative 
Celler’s explanation in introducing the amendment is authori­
tative:



16

Mr. Chairman, the purpose of the amendment is to 
specify cause. Here the court, for example, cannot find 
any violation of the act which is based on facts other— 
and I emphasize “other”—than discrimination on the 
grounds of race, color, religion, or national origin. The 
discharge might be based, for example, on incompetence 
or a morals charge or theft, but the court can only 
consider charges based on race, color, religion, or na­
tional origin. That is the purpose of this amendment.

110 Cong. Rec. 2567 (1964) (remarks of Rep. Celler). The 
concluding language of Section 706(g) is therefore concerned 
exclusively with defining a “violation of the act,” id., not with 
limiting the broad equitable powers granted by Title VII.

The progress of Section 706(g) in the Senate similarly af­
fords no basis for distorting its language to prohibit race-con­
scious affirmative remedies. The interpretive memorandum 
offered by Senators Clark and Case stated, in a passage relied 
upon by Petitioners and their amici, that:

No court order can require hiring, reinstatement, admis­
sion to membership, or payment of back pay for anyone 
who was not discriminated against in violation of this 
title. This is stated expressly in the last sentence of section 
707(e) [now Section 706(g)] which makes clear what is 
implicit throughout the whole title; that employers may 
hire and fire, promote and refuse to promote for any 
reason, good or bad, provided only that individuals may 
not be discriminated against because of race, color, reli­
gion, sex, or national origin.

110 Cong. Rec. 7214 (1964). The passage demonstrates only 
the Senators’ concern that employers be able to refuse employ­
ment or promotion to those employees considered unfit for the 
position without fear that their judgment would be overruled 
by the provisions of Title VII. It does not address (much less 
prohibit) the availability of affirmative remedies not restricted 
to individuals who have proven that they were victims of the 
employer’s practices. Far more relevant is the statement of



17

Senator Humphrey, a sponsor of Title VII, that the statute was 
intended to “open employment opportunities for Negroes in 
occupations which have been traditionally closed to them.”9 
110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey).

The legislative history of the Equal Employment Opportu­
nity Act of 1972, Pub. L. 92-261, 92d Cong., 2d Sess., 86 Stat. 
103 (1972), codified (as amended) at 42 U.S.C. § 2Q0Qe et seq., 
further demonstrates that Title VII remedies are not limited to 
adjudicated victims of discrimination. The section-by-section 
analysis of that Act provided by Senators Javits and Williams 
states that:

In any area where the new law does not address itself, or 
in any areas where a specific contrary intention is not 
indicated, it was assumed that the present case law as 
developed by the courts would continue to govern the 
applicability and construction of Title VII.

118 Cong. Rec. 3460 (1972).
Congress was unquestionably aware of decisions ordering 

race-conscious affirmative action remedies. During the debates 
on the 1972 Act in the Senate, Senator Javits specifically 
defended the affirmative action remedy ordered in United 
States v. Ironworkers, Local 86, 443 F.2d 544 (9th Cir.), cert, 
denied, 404 U.S. 984 (1971), and inserted a copy of the court’s 
opinion in the Congressional Record. 118 Cong. Rec. 1671-75 
(1972).10

Thus, the language and legislative history of Section 706(g) 
leave no doubt of the propriety of race-conscious relief that 
may benefit persons never adjudicated to have been victims of 
discrimination.

9 In United Steelworkers o f America v. Weber, 443 U.S. 193 (1979), 
the Court relied on this language in upholding a private employer’s race-con­
scious affirmative action plan.

10 In Ironworkers, the Ninth Circuit ordered the union to apprentice 
“sufficient black applicants to overcome past discrimination” without regard 
to whether an applicant was a proven victim of discrimination. See 443 F.2d 
at 553.



18

B. The Relief Granted in the Preliminary Injunction Did Not 
Impermissibly Interfere with the Operation of a Seniority 
System

Petitioners and their amici apparently believe that, even if 
certain forms of race-conscious relief were authorized under 
Section 706(g), any race-conscious remedy that intrudes (even 
minimally) on the seniority expectations of employees outside 
the plaintiff class can never be granted. The language of 
Section 706(g), however, contains no such limitation. In fact, 
the decisions of this Court support the award of relief far more 
intrusive than the remedy provided in the preliminary injunc­
tion if, as here, a valid remedial purpose is served.11

The District Court’s prohibition of reductions in the percent­
age of black employees in specified ranks within the Fire 
Department was designed solely to preserve the partial attain­
ment of the objectives set forth in the initial version of the 
1980 Decree. By shielding certain class members from the 
operation of the City’s lay-off plan, the District Court tem­
porarily protected them from a rigorous application of last- 
hired-first-laid-off seniority principles. That protection was 
limited in time to the 1981 Memphis fiscal crisis and directed 
exclusively to protecting job tenure. Unlike recipients of per­
manent retroactive seniority in Title VII cases, these class 
members did not receive increased pension rights or time 
credited towards promotion. This Court’s decisions in Franks

11 The discussion in text assumes arguendo that the City maintained a 
bona fide seniority system as that term is used in Section 703(h) of Title VII, 
42 U.S.C. § 2000e-2(h). Absent a bona fide seniority system, the considera­
tions set forth in Teamsters concerning the protection of such systems do not 
apply. It is by no means clear whether or not the City’s lay-off plan, whose 
terms differ from those of its previous, non-binding (see City o f Alcoa v. 
International Brotherhood o f Electrical Workers Local 760, 203 Tenn. 12, 
308 S.W.2d 476 (1958)) Memorandum of Understanding with the Union, is a 
bona fide seniority system. Were decision of this factual issue determinative, 
its resolution should be made first at the trial court level. Resolution of this 
issue is unnecessary, however, because Respondents would prevail even if the 
lay-off plan did constitute a bona fide seniority system.



19

and Teamsters, endorsing the wide availability of permanent 
retroactive seniority, support both the purpose and scope of the 
more limited relief granted by the District Court in the prelimi­
nary injunction.

In both Franks and Teamsters, defendant employers chal­
lenged the availability of an award of class-wide permanent 
retroactive seniority to successful Title VII plaintiffs. In 
Franks, the Court established a general presumption in favor 
of granting full retroactive seniority to victims of an em­
ployer’s discrimination.12 The Court did not relegate perma­
nent retroactive seniority to the status of rare or extraordinary 
relief, but instead held that it should ordinarily be awarded 
unless there was an “unusual adverse impact arising from facts 
and circumstances that would not be generally found in Title 
VII cases.” 424 U.S. at 779 n.41. While stressing that the 
design of the appropriate remedy is left to the sound equitable 
discretion of the district court, the Court admonished that the 
district court’s discretion must be exercised to “allow the most 
complete achievement of the objectives of Title VII that is 
attainable under the facts and circumstances of the specific 
case.” Id. at 770-71. Franks was primarily concerned with 
retroactive seniority as a restitutionary “make-whole” remedy. 
It nowhere limits retroactive seniority to serving exclusively 
that objective of Title VII, and speaks instead of the “objec­
tives” of the statute.

In Teamsters, the Court explicitly validated the employer’s 
seniority system as bona fide, yet reiterated that successful 
class members were presumptively entitled to permanent retro­
active seniority. 431 U.S. at 347. While retroactive seniority in 
Teamsters was sought and granted solely as a matter of

12 The Court in Franks rejected the contention that Section 703(h) of 
Title VII, 42 U.S.C. § 2000e-2(h), prevents the district court from awarding 
retroactive seniority. Section 703(h) states that the maintenance of a bona 
fide (i.e., nondiscriminatory) seniority system does not constitute actionable 
discrimination. As this Court explained, Section 703(h) merely defines legal 
and illegal practices under Title VII; it does not impose a limitation on the 
district court’s remedial authority under Title VII. See 424 U.S. at 757-62.



20

“make-whole” relief, the Court emphasized the importance of 
other remedial objectives of Title VII, stating (in language we 
have previously quoted) that “the district courts have ‘not 
merely the power but the duty to render a decree which will so 
far as possible eliminate the discriminatory effects of the past 
as well as bar like discrimination in the future.’ ” Id. at 364 
(quoting Moody, 422 U.S. at 418).

Given (1) the strong presumption in favor of awarding 
permanent retroactive seniority, (2) the District Court’s “duty” 
to eliminate the present effects of past discrimination, and (3) 
the deference paid to the court’s sound equitable discretion, 
the preliminary injunction here, which at most temporarily and 
partially suspended the operation of a seniority program, is not 
objectionable. The remedial purpose of the 1980 Decree, the 
elimination of the present effects of past discrimination, was 
specifically endorsed in Franks and Teamsters. Those decisions 
in no way diminish the power and obligation of the District 
Court to safeguard the efficacy of the relief that it ordered. On 
the contrary, those decisions approve active pursuit of the 
prophylactic goals of Title VII, even where, as here, this 
pursuit may partially disrupt expectations based on seniority. 
As the First Circuit noted in Boston Chapter, NAACP  v. 
Beecher, 679 F.2d 965, 975 (1st Cir. 1982), vacated and re­
manded fo r  a determination o f mootness, 103 S.Ct. 2076 
(1983), on facts virtually identical to those presented here, “To 
hold a seniority system inviolate in such circumstances would 
make a mockery of the equitable relief already granted.”

Both Franks and Teamsters recognize that relief in Title VII 
cases, including class-wide permanent retroactive seniority, 
often affects the interests of non-minority employees. See 
Franks, 424 U.S. at 774-79; Teamsters, 431 U.S. at 374-76. Yet, 
as the Court noted in Franks,

If relief under Title VII can be denied merely because the 
majority group of employees, who have not suffered 
discrimination, will be unhappy about it, there will be 
little hope of correcting the wrongs to which the Act is 
directed.



21

424 U.S. at 775 (quoting United States v. Bethlehem Steel 
Corp., 446 F.2d 652, 663 (2d Cir. 1971)). In Teamsters, this 
Court stated that it is the responsibility of the trial court to 
resolve the competing interests. See 431 U.S. at 375-76. The 
very limited and necessary relief contained in the preliminary 
injunction entails far less intrusion on the interests of non­
minority employees than did the award of permanent retro­
active seniority authorized in Franks and Teamsters. The 
District Court sensitively accommodated the interests and ex­
pectations of both class members and nonminority employees 
in fashioning a decree that does no more than safeguard, for 
the limited duration of the 1981 layoffs, the progress in 
affirmative action that had already been made.

Petitioners and their amici argue that, because there was no 
finding of discrimination by the City and no adjudication that 
each class member protected from lay-offs was a proven victim 
of discrimination, the District Court lacked equitable discre­
tion to issue a preliminary injunction affecting seniority expec­
tations. These arguments treat the 1980 Decree as a procedural 
nullity without consequences for the defendants.

A consent decree is a court order embodying an agreement 
by the defendant to provide the plaintiff class with specified 
relief. See United States v. City o f Miami, 664 F.2d 435, 439-40 
(5th Cir. 1981) (en banc) (plurality opinion). By agreeing to the 
1980 Decree, the City waived its right to insist that the plaintiff 
class prove the City’s commission of discriminatory practices, 
just as the plaintiff class waived its right to seek greater relief 
(e.g., full retroactive seniority) from the court. The City, in an 
effort to defeat the District Court’s injunction preserving the 
remedy agreed upon in 1980, cannot now rely on the absence 
of a finding which it, by its consent, made unnecessary.13 A

13 However, the District Court could not have approved the 1980 
Decree unless it found that the the decree was fair and equitable in light of 
the plaintiff’s showing of a potential violation. Here, both the District Court 
and, on appeal, the Sixth Circuit carefully reviewed the 1980 Decree and 
found it fair and equitable. In granting the preliminary injunction, the 
District Court explicitly took judicial notice (on the basis of both facts in the 
record and common public knowledge) that the City was guilty of racial 
discrimination. (Petitions for Cert., App. at 73-74).



22

contrary rule would render courts of equity powerless to 
protect the efficacy of relief ordered by consent and would 
subject litigants to the protracted litigation that the consent 
decree was designed to avoid.

The Petitioners also mistakenly insist that the District Court 
could not issue the preliminary injunction without first deter­
mining that each recipient was a victim of the City’s dis­
criminatory practices. When full retroactive seniority is sought 
solely as restitutionary “make-whole” relief, Franks and Team­
sters understandably limit such relief to identifiable victims of 
the employer’s practices. (A non-victim neither seeks nor needs 
restitution.)

In this case, however, the relief granted was not sought as 
“make-whole” relief. It was awarded pursuant to the District 
Court’s mandate under Section 706(g) to order appropriate 
affirmative action and pursuant to its power as a court of 
equity to preserve the integrity of its decrees. Thus, affirmative 
action was necessary to protect the remedy (albeit partial) 
achieved under an earlier uncontested decree designed to elimi­
nate the enduring effects of historic discrimination. Franks and 
Teamsters hold that, if a class-wide award of permanent 
retroactive seniority is necessary to achieve the objectives of 
Title VII, it should be granted notwithstanding its effect on the 
seniority expectations of employees outside the class. These 
cases do not hold that retroactive seniority can never be 
granted to individuals not adjudicated victims of the em­
ployer’s discrimination. Instead, they commit the scope of 
relief to the sound discretion of the district court. Given the 
presumption established by these cases in favor of granting a 
form of seniority relief far more intrusive than that at issue 
here, the District Court should not be found to have abused its 
discretion. After considering the equities, the court acted well 
within its discretion in approving a remedy that has only a 
limited and temporary effect on seniority while achieving the 
unexceptionable purpose of effectuating the court’s prior de­
cree.

The requirement of an adjudication that each beneficiary 
was a victim of discrimination, like the requirement of an



23

adjudication that the defendant had engaged in discriminatory 
practices, would effectively prevent courts of equity from 
moving swiftly to preserve the results that have already been 
achieved under a Title VII consent decree. Such adjudications 
would be especially inappropriate in the context of a prelimi­
nary injuction, which seeks only to protect the status quo, 
prior to a decision by the District Court on the merits.

Even assuming that such individual adjudications were 
appropriate, this Court held in both Franks and Teamsters that 
such adjudications are not a prerequisite to an initial class-wide 
award of retroactive seniority. In Franks, this Court ruled that 
class-wide permanent retroactive seniority should be awarded 
by the district court subject to the employer’s right, at subse­
quent proceedings, to object to the award of retroactive senior­
ity to specific employees on an individual basis. Franks, 424 
U.S. at 772-73. As an indication of the importance given to 
providing complete relief, the Court placed the burden of 
proof in such individual proceedings on the employer. Id. at 
773 n.32. In Teamsters, the Court restated these propositions. 
431 U.S. at 359 & n.45.14 Accordingly, individual adjudica­
tions, even where appropriate, should occur only following the 
entry of class-wide retroactive seniority after a hearing on the 
merits, and a fortiori were not required before the entry of the 
much more modest relief at issue here. The absence of such 
adjudications prior to issuance of the preliminary injunction 
affords no basis for disturbing the District Court’s ruling.

14 In Teamsters, the court isolated a single discrete group of plaintiffs, 
those who had never applied for the position of over-the-road driver, and 
held that, before they enjoyed the presumption in favor of full retroactive 
seniority, they first bore the burden of establishing that they would have 
applied for the position but for the employer’s discrimination. See 431 U.S. 
at 367-68. There is no indication that such a discrete group exists here, 
because all employees benefiting from the preliminary injunction were hired 
prior to the entry of the consent decree in 1980, see Brief for Petitioner 
Memphis Fire Department, Add. A. The less intrustive form of relief granted 
in the preliminary injunction cannot justify such segmentation in any event.



24

CONCLUSION

For the foregoing reasons, MALDEF respectfully requests 
that this Court affirm the decision of the United States Court 
of Appeals for the Sixth Circuit.

Respectfully submitted,

Robert L. King 
(Counsel of Record)

Mary Jo White 
Kenneth E. Wile 
George T. Spera, Jr. 
Debevoise & Plimpton 
875 Third Avenue 
New York, New York 10022 
(212) 909-6000

Attorneys fo r  Amicus Curiae 
The Mexican American 
Legal Defense and 
Educational Fund

O f Counsel:
Joaquin G. Avila 
Morris J. Bailer 
The Mexican American 

Legal Defense and 
Educational Fund 

28 Geary Street
San Francisco, California 94108

October 27, 1983



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